Abbott says companies must release chemical info but state does not

Requests to companies produce mixed results

By Lauren McGaughy

July 2, 2014Updated: July 2, 2014 10:13pm

AUSTIN - Attorney General Greg Abbott this week said private companies must release information about their hazardous chemical stockpiles, weeks after his office ruled the same information no longer would be available from state agencies.

"Homeowners who think they might live near stores of dangerous chemicals would simply ask the companies what substances are kept on site," Abbott told reporters Tuesday, adding, "And if they do, they tell which ones they have."

Not everyone agrees with Abbott's reading of the law, however.

Requests by the Houston Chronicle to 20 companies and local emergency response agencies last month produced mixed results: Half of the companies and agencies sent extensive data on the hazardous chemicals they held on site, known as Tier II reports; five sent basic chemical inventories that often did not include amounts or other details; one asked for more information; two refused to release any data; and two did not respond.

The two refusals to release the information came from mining and chemical conglomerate Orica and the Bexar County Local Emergency Planning Committee.

"I appreciate your request for information about our San Antonio site," Orica General Counsel Suzanne Thigpen told the Chronicle in a June 24 email. "We believe, however, that it is in the best interest of the community that details about our site are not disclosed to the public and that sharing those details does not serve the public interest."

'Confidential'

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Harold Lovejoy, chairman of the Bexar County Local Emergency Planning Committee, said his agency would not release the requested data, believing Abbott's ruling regarding state agencies also applied to the local committee.

"According to recent instructions from the Texas Attorney General ... the information you requested on Tier II submissions is considered confidential," Lovejoy said. "I will not be asking for a separate ruling by the AG, unless you chose to file legal proceedings, in which case we'll see you in court."

Attorney General spokesman Jerry Strickland on Wednesday said Abbott's ruling on state agencies is not a blanket ban on the release of Tier II reports. Any state entity wishing to deny the release of these records must ask Abbott's office, he said, which Bexar County has not done.

Federal and state law requires Texas officials to gather Tier II reports annually for facilities that house potentially dangerous chemicals in certain quantities. For the last 30 years, that information was available upon request to any member of the public who sought to be involved in state and local emergency preparedness plans or simply wanted to know what possible dangers lie beyond their backyards.

The information was key in revealing how much ammonium nitrate was being stored at the West Fertilizer Company before the deadly blast there last year. The media was able to patch together detailed information of how the volatile chemical, a key component in fertilizer, was stored in facilities across the state through Tier II reports and state fire marshal inspections.

That all changed on May 22, when Abbott ruled the Texas Department of State Health Services did not have to release Tier II data to a Dallas-Fort Worth television station, saying the reports were confidential under a decade-old state homeland security law because the information "indicates the specific location of a chemical, biological agent, toxin, or radioactive material that is more than likely to be used in the construction or assembly" of a weapon.

Davis' response

The campaign of Abbott's Democratic opponent in the governor's race, state Sen. Wendy Davis, gleefully teed up the issue. First, Davis criticized Abbott for his May 22 ruling. This week she blasted his suggestion members of the public "drive around" to locate facilities.

"This would be hilarious if it weren't so alarming," a Wednesday press release stated. "According to the state's attorney general, the man favored to become governor next year, you should 'drive around' looking for facilities that might have dangerous chemicals, then go knock on their door, ask about dangerous chemicals, and hope whoever answers is forthcoming."

Tom "Smitty" Smith, the Texas head of consumer advocacy group Public Citizen, said "this is a huge campaign issue and should be."

"Other former attorneys general would have stood up for the citizens," Smith said. "The process Abbott has now created is almost impossible for the average citizen that doesn't have the Houston Chronicle's name to back them up."

Facing penalties

Abbott acknowledged to the Associated Press on Wednesday that the process may be more difficult than he originally had proposed, calling it "challenging" to get chemical facility information.

Abbott's statements also could encounter opposition from the business community.

Attorney General spokesman Jerry Strickland said any private company that denied the Chronicle's requests was providing the public with "misinformation" and could face unspecified "penalties."

"Chemical companies have an obligation under the Community Right-to-Know Act to disclose that information to the general public within 10 days," Strickland said in a statement to the Chronicle. "Private companies are required to provide the information. Any failure (to) do to so carries with it penalties to be assessed by the Department of State Health Services."

Strickland said Abbott's office was reaching out to the Texas Ag Industries Association, a trade group to which Orica does not belong, to ensure its members understand the law. TAIA President Donnie Dippel said he would urge his members to comply with the law.

Strickland reiterated that the refused information requests were not Abbott's choice, but what was required under state law."

Industry lawyer and lobbyist Pam Giblin said the issue was not that cut and dried.

"If the government doesn't have to release it, how in the world does a private company get this disclosure obligation thrust on it?" Giblin asked, adding she sees possible litigation on the horizon. "There are a lot of homeland security issues. ... I think you're bound to see some court tests because this just doesn't make sense."

Lobbied for many

According to state Ethics Commission reports, Giblin has lobbied for multiple companies the Chronicle contacted for public records, including Albemarle, BASF, Celanese, Chevron, Eastman and Valero, each of which provided either a Tier II report or a chemical inventory list.